how to probate an estate in california 19th (2008)

19th edition
How to
Probate
an Estate

in California
by Julia Nissley
Dear friends,
Since 1971, Nolo has worked hard to help Americans get
a fair shake from the legal system. How? By producing
books, software, forms and a website that translate
legal jargon into plain English, off er clear instructions
for routine tasks and break down complex systems into
easy-to-understand components.
All of our publications are relentlessly researched and
tested by a dedicated group of in-house legal editors.
And when we come out with a new edition, you’ll know
that it’s been thoroughly updated.
 ere’s a reason why Nolo is not only the nation’s
oldest, but also the most respected provider of legal
information. Our mission, refl ected in everything we
publish, is to give consumers and small businesses the
best information available. We’re proud that tens of
millions of Americans have looked to Nolo to help
them solve their problems and achieve their goals.
Ralph Warner,
Nolo co-founder
 e

NOLO
Story

Whether you have a simple question or a complex
problem, turn to us at:
ALWAYS UP TO DATE
Sign up for
NOLO’S
LEGAL UPDATER
Old law is bad law. We’ll
email you when we publish
an updated edition of this
book—sign up for this
free servi
c
e at nolo.com/
legalupdater.
Find the latest updates
at
NOLO.COM
Recognizing that the law
can change even before you
use this book, we post legal
updates during the life of this
edition at nolo.com/updat
e
s.
Is this edition the newest?
ASK US!
To make sure that this is
the most recent edition
available, just give us a call
at 800-728-3555.

(Please note that we
cannot off er legal advice.)
NOLO.COM
Your all-in-one legal resource
Need quick information about wills, patents,
adoptions, starting a business—or anything
else that’s aff ected by the la
w?
Nolo.com
is packed with free articles, legal updates,
resources and a complete catalog of our
books and software
.
NOLO NOW
Make your legal documents online
Creating a legal document has never been
easier or more cost-eff ective! Featuring Nolo’s
Online Will, as well as online forms for LLC
formation, incorporation, divorce, name
change—and many more! Check it out at
o.c
o
m.
NOLO’S LAWYER DIRECTORY
Meet your new attorney
If you want advice from a qualifi ed attorney,
turn to Nolo’s Lawyer Directory—the only
directory that lets you see hundreds of
in-depth attorney profi les so you can pick
the one that’s righ

t
for you. Find it at http://
lawyers.nolo.com.
OUR MISSION
Make the law as simple as
possible, saving you time,
money and headaches.
N O L O
Your Legal Companion
“In Nolo you can trust.” —THE NEW YORK TIMES
We believe accurate, plain-English legal information should help
you solve many of your own legal problems. But this text is not a
substitute for personalized advice from a knowledgeable lawyer. If
you want the help of a trained professional—and we’ll always point
out situations in which we think that’s a good idea—consult an
attorney licensed to practice in your state.
Please note
19th edition
How to
Probate
an Estate

in California
by Julia Nissley
Nineteenth Edition APRIL 2008
Editor BETSY SIMMONS
Cover Design SUSAN PUTNEY
Production MARGARET LIVINGSTON
Proofreading EMILY K. WOLMAN
Index SONGBIRD INDEXING SERVICE

Printing DELTA PRINTING SOLUTIONS, INC.
International Standard Serial Number (ISSN): 1940-6282
ISBN-13: 978-1-4133-0760-3
ISBN-10: 1-4133-0760-4
Copyright © 1986, 1987, 1988, 1989, 1990, 1991, 1993, 1994, 1997, 1998, 2000, 2002, 2003,
2004, 2005, 2006, 2007, and 2008 by Julia Nissley
ALL RIGHTS RESERVED. PRINTED IN THE USA.
No part of this publication may be reproduced, stored in a retrieval system, or transmitted
in any form or by any means, electronic, mechanical, photocopying, recording, or other-
wise without prior written permission. Reproduction prohibitions do not apply to the forms
contained in this product when reproduced for personal use.
For information on bulk purchases or corporate premium sales, please contact the Special
Sales Department. For academic sales or textbook adoptions, ask for Academic Sales. Call
800-955-4775 or write to Nolo at 950 Parker Street, Berkeley, CA 94710.
Acknowledgments
This book was made possible through the efforts of many people. I would especially
like to thank Mary Randolph and Shae Irving, two splendid editors, who reviewed the
text and made numerous suggestions for improvement. Others who made valuable con-
tributions are Jake Warner, Steve Elias, Mari Stein, Sarah Hinman, Susan Carlson Greene,
and Betsy Simmons. My gratitude also to the many readers who have taken the time to
write and offer comments and suggestions. Finally, a special thank you to my former
boss Alan Watenmaker, a probate and estate planning attorney in West Los Angeles,
for giving me the opportunity to learn so much about the subject, my children for their
patience, and especially my husband, Ron, for always being there with encouragement
and support.
The procedures in this book are for California estates only. You cannot
transfer real estate located in other states using the instructions
in this book. To transfer property located outside of California, you must
either learn that state’s rules or consult a lawyer in the state where the
property is located.

Your Probate Legal Companion
1
An Overview
What Is Probate? 4
What Is Involved in Settling an Estate? 4
How Long Does It Take to Settle an Estate? 5
What This Book Covers 5
Simple Estate Checklist 6
Important Terms in Probate 6
Insolvent Estates 9
Estate Taxes 10
Do You Need an Attorney? 10
2
First Steps in Settling an Estate
Who Should Act as the Estate Representative? 14
Responsibilities of the Estate Representative 16
Specific Duties of the Estate Representative 17
3
Who Are the Heirs and Beneficiaries?
Where to Start 34
How to Read a Will 37
Table of Contents
Compare Schedule of Assets With Property Left in Will 42
Who Inherits When the Will Is Ineffective? 45
If There Is No Will 47
The Concept of Right of Representation 48
4
What Is the Decedent’s Estate?
Real Property 56

Personal Property 63
What Establishes Ownership of Property? 64
How Was the Decedent’s Property Owned? 64
How to Determine Whether Property Is Community or Separate 67
Actions That Change the Character of Property 69
Property That Is a Mixture of Community and Separate Property 70
Examples of Property Ownership 71
Property Acquired by Couples Before They Moved to California 73
5
Preparing a Schedule of the Assets and Debts
Describe Each Asset 77
Value Each Asset (Column A) 77
How to Determine Ownership of Property (Columns B & C) 78
List the Value of the Decedent’s Interest (Column D) 79
Determine Whether Property Is Probate or Nonprobate Asset (Column E) 79
List All Debts 80
Checklist of Property to List on Schedule of Assets 80
Schedule of Assets for a Sample Estate 95
6
How to Identify the Best Transfer Procedure
Nonprobate Assets 104
Assets That May Be Subject to Formal Probate 105
Examples of How Assets Are Transferred in Typical Estates 107
Sample Estates 107
7
What About Taxes?
Decedent’s Final Income Tax Returns 112
Fiduciary Income Tax Returns 114
Other Income Tax Returns 115
Stepped-Up Tax Basis Rules for Inherited Property 115

Federal Estate Tax Return 116
California Estate Tax Return 119
California Inheritance Tax 119
Tax Issues for Some Typical Estates 120
8
Transferring Title to Real Property
Ways to Transfer Real Estate After Death 124
Basic Information on Recording Documents 124
Change in Ownership Statements 125
How to Record Your Document Transferring Title 128
Mortgages 133
9
How to Transfer Securities
Documents Required to Transfer Securities 137
The Stock or Bond Power 139
The Affidavit of Domicile 141
The Transmittal Letter 141
How to Sell Securities 141
The Stock Transfer Tax 141
10
Joint Tenancy Property
Where to Start 146
How to Clear Title to Real Property in Joint Tenancy 146
How to Clear Title to Securities Held in Joint Tenancy 149
How to Clear Title to Motor Vehicles and Small Boats
Held in Joint Tenancy 149
How to Clear Title to Joint Tenancy Bank Accounts
(and Totten Trust Accounts) 151
How to Clear Title to Money Market Funds and Mutual Funds 151
How to Clear Title to U.S. Savings Bonds in Co-Ownership 151

11
Transferring Small Estates Under $100,000
Overview of the Simplified Transfer Procedure for Small Estates 154
How to Determine Whether You Can Use Summary Procedures 155
How to Transfer the Property 156
12
How to Transfer Trust Property and Property
Subject to Life Estates
Notifying Heirs and Beneficiaries 172
Trust Property 172
Handling Debts and Expenses 174
How to Transfer Property Held in Living Trusts 174
Life Tenancy (Life Estate) 177
13
An Overview of the Probate Court Process
Do You Really Need a Probate Court Proceeding? 181
Probate Checklist 181
Dealing With the Probate Court 181
Beginning the Probate Process 187
Taking Care of the Estate During Probate 194
Closing the Estate 199
14
Conducting a Simple Probate Court Proceeding
Step 1: Prepare the Petition for Probate 205
Step 2: Prepare the Certificate of Assignment 220
Step 3: Prepare the Notice of Petition to Administer Estate 220
Step 4: File Your Petition for Probate 226
Step 5: Complete the Proof of Subscribing Witness Form 228
Step 6: Complete a Proof of Holographic Instrument 233
Step 7:

Notify Government Agencies 233
Step 8: Prepare Your Order for Probate 234
Step 9: Study and Respond to the Calendar Notes 234
Step 10: Prepare the Letters 238
Step 11: Prepare the Duties and Liabilities of Personal
Representative Form 238
Step 12: Prepare the Application Appointing Probate Referee 243
Step 13: Prepare Notice of Proposed Action, If Necessary 243
Step 14: Prepare the Inventory and Appraisal Form 252
Step 15: Notify Creditors and Deal With Creditors’ Claims and
Other Debts 258
Step 16: Prepare the Petition for Final Distribution 266
Step 17: Prepare Notice of Hearing (Probate) 292
Step 18: Prepare Order of Final Distribution 293
Step 19: Transfer the Assets and Obtain Court Receipts 296
Step 20: Request Discharge From Your Duties 302
15
Handling Property That Passes Outright to the
Surviving Spouse or Domestic Partner
An Overview of These Simplified Procedures 306
Collecting Compensation Owed the Decedent 307
Affidavit for Transferring Community Real Property 308
Survivorship Community Property 312
The Spousal or Domestic Partner Property Petition 314
How to Transfer the Assets to the Surviving Spouse or Partner 332
16
If You Need Expert Help
What Kind of Expert Do You Need? 336
Using a Legal Document Assistant 336
Using a Lawyer 337

Glossary
Appendixes
A
California Probate Code §§ 13100–13106
B
Judicial Council Forms
DE-111 Petition for Probate
DE-120 Notice of Hearing
DE-121 Notice of Petition to Administer Estate
DE-121(MA) Attachment to Notice of Petition to Administer Estate
DE-131 Proof of Subscribing Witness
DE-135 Proof of Holographic Instrument
DE-140 Order for Probate
DE-147 Duties and Liabilities of Personal Representative
DE-147S Confidential Supplement to Duties and Liabilities
of Personal Representative
DE-150 Letters
DE-157 Notice of Administration to Creditors
DE-160 Inventory and Appraisal
DE-161 Inventory and Appraisal Attachment
DE-165 Notice of Proposed Action
DE-174 Allowance or Rejection of Creditor’s Claim
DE-221 Spousal or Domestic Partner Property Petition
DE-226 Spousal or Domestic Partner Property Order
DE-270 Ex Parte Petition for Authority to Sell Securities and Order
DE-295 Ex Parte Petition for Final Discharge and Order
DE-305 Affidavit re Real Property of Small Value ($20,000 or Less)
DE-310 Petition to Determine Succession to Real Property
(Estates of $100,000 or Less)
DE-315 Order Determining Succession to Real Property

(Estates of $10,000 of Less)
C
Non-Judicial Council Forms
Declaration Regarding Property Passing to Decedent’s Surviving Spouse or
Registered Domestic Partner Under Probate Code § 13500
Who Inherits Under the Will?
Schedule of Assets
Notification by Trustee
Affidavit—Death of Joint Tenant
Affidavit—Death of Trustee
Affidavit—Death of Spouse
Affidavit—Death of Domestic Partner
Affidavit—Death of Spouse or Domestic Partner—Survivorship Community Property
Affidavit for Collection of Personal Property Under California
Probate Code §§ 13100–13106
Deed to Real Property
Probate Case Cover Sheet—Certificate of Grounds for Assignment to District
(L.A. County)
Application and Order Appointing Probate Referee (L.A. County)
Change in Ownership Statement (Death of Real Property Owner) (L.A. County)
Preliminary Change of Ownership Report
Index

CHAPTER
1
Your Probate Legal Companion
T
he loss of a close family member or
other loved one can bring feelings of
anxiety and uncertainty, as well as grief.

If, while you’re trying to cope and adapt to changes,
you take on the added burden of settling the
deceased person’s affairs, it may all seem like too
much to deal with.
This book can help.
How to Probate an Estate in California explains
the major steps required to settle a simple California
estate. It uses plain English to make the law as
easy to understand as possible. The early chapters
discuss what you should do first, and the rest guide
you through the estate administration process.
You’ll get clear instructions for how to complete a
formal probate court proceeding, how to deal with
community property, how to bypass the probate
court and transfer a small estate by a simple affidavit
or through “summary” proceedings, how to handle
joint tenancies, and much more.
Not all estates need a formal probate court
proceeding. California law contains many shortcuts
—methods for transferring property after a death
without probate court proceedings, most of which
can be completed in a matter of weeks.
Only when there is no other way to transfer
title from the deceased person to the new rightful
owner is a formal probate proceeding necessary.
Even then, court involvement has been reduced to
a minimum. Probate is mostly paperwork—and you
can use printed, fill-in-the-blanks forms provided
by the court. This book contains all the forms you’ll
need, and we’ll show you how to fill them in and

file them. Patience and the willingness to take time
to carefully follow directions is all it takes. As long
as the estate is without unusual problems, you can
wind up the deceased person’s affairs quickly and
easily with the instructions in this book.
There may be times, however, when you need
some expert help. This may mean hiring an attorney
to advise you on one or more specific points, or
it may require turning over the entire probate
proceeding to an attorney. Throughout the book
we alert you to some of the potential problems.
For example, if there are major disagreements
among the beneficiaries, or if someone is planning
to contest the will, you will need a lawyer. Also,
if the estate is very large (over $2 million) with a
lot of assets and many beneficiaries, you’ll want to
get some help with federal estate tax issues, which
can get complicated. Finally, be aware that this
book explains how to handle the estate of someone
who was a resident of California at death and who
owned property in this state. If the deceased person
lived elsewhere or owned real estate in another
state, this book is not for you.
2 HOW TO PROBATE AN ESTATE IN CALIFORNIA
You may wonder, if you’re in the midst of
grieving, whether you can cope with the details
and possible complexities of settling a loved one’s
affairs. We can only suggest that you give it a try.
You don’t have to do everything at once; we’ll
let you know what can wait until you’re ready.

And sometimes the concentration needed to do
bureaucratic work can even be a form of therapy,
especially when you realize that your efforts will
help preserve the estate and distribute it as your
loved one intended. Good luck.
Icons Used in This Book
Caution: A potential problem.
Fast Track: Lets you know that you may
be able to skip some material.
Resources: Refers you to another self-
help resource.
Lawyer: Situations when you should see
a lawyer about a particular issue.
Tip: A bit of advice that may help you
with a particular issue.
Cross-Reference: Directs you to another
part of this book for more information.
n
What Is Probate? 4
What Is Involved in Settling an Estate? 4
How Long Does It Take to Settle an Estate? 5
What This Book Covers 5
Simple Estate Checklist 6
Important Terms in Probate 6
The Gross Estate and the Net Estate 6
The Probate Estate 6
The Taxable Estate 9
Insolvent Estates 9
Estate Taxes 10
Do You Need an Attorney? 10

Chapter 1
An Overview
4 HOW TO PROBATE AN ESTATE IN CALIFORNIA
What Is Probate?
Many people aren’t sure what the term “probate”
really means. They think of it only as some long,
drawn out, and costly legal formality surrounding
a deceased person’s affairs. Technically, probate
means “proving the will” through a probate court
proceeding. A generation ago, virtually every estate
had to be reviewed by a judge before it could pass
to those who would inherit it. Today there are
several ways to transfer property at death, some
of which don’t require formal court proceedings,
so the term is now often used broadly to describe
the entire process by which an estate is settled and
distributed.
For example, a surviving spouse or domestic
partner may receive property outright from the
deceased spouse or partner without any probate
proceedings at all. Joint tenancy property also escapes
the need for formal probate, as does property left
in a living (inter vivos) trust and property in a pay-
on-death bank account (Totten trust). If an estate
consists of property worth less than $100,000, it,
too, can be transferred outside of formal probate.
Fortunately, the paperwork necessary to actually
transfer property to its new owners in the foregoing
situations is neither time-consuming nor difficult. We
discuss all of these procedures, as well as how to do

a formal probate court proceeding.
There is one thing you should understand at the
outset: The person who settles an estate usually
doesn’t have much choice as to which property
transfer method to use. That is, whether you are
required to use a formal probate or a simpler
method to transfer property at death depends
on how much (or little) planning the decedent
(deceased person) did before death to avoid
probate. This is discussed in detail as we go along.
Both formal probate and some of the other
nonprobate procedures involve filing papers at a
court clerk’s office, usually in the county where
the decedent resided at the time of death. In larger
counties, going to the main courthouse and other
government offices in person can be an ordeal.
To avoid this, you may settle most simple estates
entirely by mail, even if a formal probate court
proceeding is required. In other words, most
probate matters don’t require that you appear in
court before a judge. In fact, settling an estate by
mail is now the norm in many law offices. We will
show you how to do this as we go along.
What Is Involved in Settling
an Estate?
Generally, settling an estate is a continuing process
which:
• determineswhatpropertyisownedbythe
decedent
• paysthedecedent’sdebtsandtaxes,ifany,

and
• distributesallpropertythatislefttothe
appropriate beneficiaries.
When a person dies, she may own several
categories of assets. Among these might be
household belongings, bank and money market
accounts, vehicles, mutual funds, stocks, business
interests, and insurance policies, as well as real
property. All property owned by the decedent at
the time of his or her death, no matter what kind, is
called his or her “estate.”
To get this property out of the name of the
decedent and into the names of the people who
inherit it requires a legal bridge. There are several
types of legal procedures or bridges to move different
kinds of property to their new owners. Some of
these are the equivalent of large suspension bridges
that will carry a lot of property while others are
of much less use and might be more analogous
to a footbridge. Lawyers often use the word
“administrate” and call this process “administering
an estate.” In this book we refer to these procedures
collectively as “settling an estate.”
Most of the decedent’s estate will be passed to
the persons named in his or her will, or, if there
CHAPTER 1: AN OVERVIEW 5
is no will, to certain close relatives according to
priorities established by state law (called “intestate
succession”). However, to repeat, no matter how
property is held, it must cross an estate settlement

bridge before those entitled to inherit may legally
take possession. The formal probate process is but
one of these bridges. Some of the other bridges in-
volve community property transfers, clearing title to
joint tenancy property, winding up living trusts, and
settling very small estates that are exempt from pro-
bate. Again, we discuss all of these in detail.
How Long Does It Take to
Settle an Estate?
If a formal probate court procedure is required, it
usually takes from seven to nine months to complete
all the necessary steps, unless you are dealing with
a very complicated estate. On the other hand, if the
decedent planned his or her estate to avoid probate,
or the estate is small, or everything goes to a
surviving spouse or domestic partner, then the estate
may be settled in a matter of weeks by using some
easier nonprobate procedures.
The procedures in this book are only for
California estates. Real property and tangible
personal property (see Chapter 4 for definitions) located
outside of California are not part of a California estate
and cannot be transferred following the instructions
in this book. To transfer property located outside of
California, you will either have to familiarize yourself
with that state’s rules (these will be similar, but by no
means identical to those in effect in California) or hire a
lawyer in the state where the property is located.
What This Book Covers
Not all estates can be settled entirely by using a

self-help manual. Although most California estates
can be settled easily with the procedures described
in the following chapters, some will require at least
some formal legal assistance. Therefore, it’s important
to know if the one you are dealing with is beyond
the scope of this book.
First, an estate that can be settled using this book
(a “simple estate,” for lack of a better term) is one
that consists of the common types of assets, such
as houses, land, a mobile home, bank accounts,
household goods, automobiles, collectibles, stocks,
money market funds, promissory notes, etc. More
complicated assets, such as complex investments,
business or partnership interests, or royalties from
copyrights or patents, are often not as easy to
deal with because they involve additional factors,
such as determining the extent of the decedent’s
interest in the property and how that interest is
transferred to the new owner. However, it may be
possible to include unusual assets in a simple estate
if the person settling the estate is experienced in
such matters or has help from an accountant or
attorney along the way. When questions arise as to
ownership of an asset, or when third parties (anyone
not named in the will or by intestacy statutes) make
claims against the estate (as would be the case if
someone threatened to sue over a disputed claim),
you have a complicated situation that will require
help beyond this book.
Second, for an estate to be “simple” there should

be no disagreements among the beneficiaries,
especially as to the distribution of the property.
There is no question that dividing up a decedent’s
property can sometimes bring out the worst in
human nature. If you face a situation where family
members are angry and lawsuits are threatened, it
is not a simple estate. To settle an estate without
unnecessary delays or complications and without
a lawyer, you need the cooperation of everyone
involved. If you don’t have it (for example, a dis-
appointed beneficiary or family member plans to
contest the will or otherwise engage in obstructionist
behavior), you will have to try to arrange a
compromise with that person by using formal
mediation techniques or the help of a person
6 HOW TO PROBATE AN ESTATE IN CALIFORNIA
respected by all disputants. If this fails, you will
need professional help. (See Chapter 16.)
Third, and contrary to what you might think, a
simple estate does not have to be small. The only
additional concern with a large estate is federal
estate taxes, which affect estates of at least $2
million for deaths in 2007 and 2008. Estate income
tax returns may also be required. You can hire
an accountant who is familiar with estate taxes to
prepare the necessary tax returns for you, leaving
you free to handle the rest of the settlement
procedures yourself. We provide an overview of
estate taxation in Chapter 7.
Simple Estate Checklist

The checklist below shows all the basic steps in
settling a simple estate in California. Each step is
thoroughly explained later in the book.
This list may appear a bit intimidating at first, but
don’t let it discourage you. Not all of these steps are
required in every situation, and even then you won’t
find them difficult. As with so many other things in
life, probating a simple estate is much like putting
one foot in front of the other (or one finger after
another on your keyboard). If you take it step by
step, paying close attention to the instructions, you
should have little difficulty. Remember, if you get
stuck, you can get expert help to solve a particular
problem and then continue with the rest.
Important Terms in Probate
As you read through this material, you will be
introduced to a number of technical words and
phrases used by lawyers and court personnel.
We define these as we go along, with occasional
reminders. If you become momentarily confused,
refer to the glossary, which follows Chapter 16.
The Gross Estate and the Net Estate
You will encounter the terms “gross estate” and
“net estate” while settling any estate. The distinction
between the two is simple as well as important.
The decedent’s gross estate is the fair market value
at date of death of all property that he owned. It
includes everything in which the decedent had
any financial interest—houses, insurance, personal
effects, automobiles, bank accounts, unimproved

land, etc.—regardless of any debts the decedent
owed and regardless of how title to the property
was held (for example, in a living trust, in joint
tenancy, or as community property). The net estate,
on the other hand, is the value of what is left after
subtracting the total amount of any mortgages, liens,
or other debts owed by the decedent at the time of
death from the gross estate.
EXAMPLE: Suppose Harry died, leaving a home,
car, stocks, and some cash in the bank. To arrive
at his gross estate you would add the value of
all his property without looking to see if Harry
owed any money on any of it. Let’s assume that
Harry’s gross estate was $500,000. Now, assume
when we check to see if Harry owed money,
we discover that he had a mortgage of $150,000
against the house. This means his net estate (the
value of all of his property less what he owed
on it) would be worth $350,000.
EXAMPLE: If Bill and Lorie, husband and wife,
together own as community property a house,
car, and savings account having a total gross
value of $800,000, and owe $300,000 in debts,
the net value of their community property would
be $500,000. However, if Lorie died, only one-
half of their property would be included in her
estate because under California community
property rules, discussed in detail in Chapter 4,
the other half is Bill’s. Thus, Lorie’s gross estate
would be $400,000 and her net estate $250,000.

The Probate Estate
The “probate estate,” quite simply, is all of the
decedent’s property that must go through probate.
This is very likely to be less than the total amount
of property the decedent owned, because if an asset
CHAPTER 1: AN OVERVIEW 7
1. Locate the will, if any, and make copies.
2. Order certified copies of the death certificate.
3. Determine who will be the estate r epresentative.
4. Determine the heirs and beneficiaries and get their names, ages, and addresses.
5. Determine the decedent’s legal residence.
6. Collect insurance proceeds, Social Security benefits, and other death benefits.
7. Arrange for final income tax returns and estate fiduciary income tax returns, if required.
8. Assemble and list assets such as:
• Bankaccounts
• Cashandcashreceivables,uncashedchecks,moneymarketfunds
• Promissorynotesandotherdebtsowingtodecedent
• Stocksandbonds(includingmutualfunds)
• Businessinterests,copyrights,patents,etc.
• Realproperty
• Antiquesandcollectibles,motorvehicles(includingmotorhomes)
• Miscellaneousassetsincludinghouseholdgoodsandclothing,and
• Insurance.
9. Determine whether each item of property is community or separate property and how title is held
(for example, in the decedent’s name alone, in joint tenancy, etc.).
10. Estimate the value of each asset and, if the decedent was a co-owner, the value of his or her share.
11. List debts and obligations of decedent unpaid at date of death, including:
• Funeralandlastillnessexpenses
• Incometaxes
• Realpropertytaxes

• Encumbrancesorliensonrealorpersonalproperty
• Debtsoutstanding,and
• Approximateexpensesofadministeringtheestate,suchascourtlingfees,certicationfees,ap-
praisal fees, etc. (These fees usually total less than $800, unless the estate is large.)
12. Determine priority of debts.
13. Pay debts having priority, as soon as estate funds are available.
14. Prepare and file U.S. estate tax return, if required.
15. Determine method of transferring assets:
• Terminatejointtenancytitletoproperty;transferbanktrustaccountstobeneciaries.
• Transferestatesunder$100,000withoutformalprobateadministration.
• Transferpropertygoingoutrighttosurvivingspouseordomesticpartnerwithoutformalprobate.
• Ifpropertyisinalivingtrust,thetrusteenamedinthetrustdocumentmaytransfer(oradminister)
the trust property in accordance with the trust’s provisions.
• Beginsimpleprobatecourtproceedingsifnecessarytotransferotherproperty.(Adetailed
checklist of the steps in the actual probate court process is in Chapter 13.)
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏
❏

Checklist for Settling a Simple Estate
8 HOW TO PROBATE AN ESTATE IN CALIFORNIA
Title may be confirmed in name of surviving
spouse or partner with Spousal or Domestic
Partner Property Petition (Chapter 15).
Are any assets held in joint tenancy?
Are any joint tenancy assets the community
property of decedent and his or her surviving
spouse or domestic partner?
Clear joint tenancy title in names of survivors
(Chapter 10).
Are the trust assets registered in the name
of the trust?
Did decedent have a living trust?
Is the gross value of the estate $100,000 or less
(excluding joint tenancy or properly registered
trust assets or assets that pass to a surviving spouse
or domestic partner)?
How to Settle an Estate
Do any assets pass outright to a surviving spouse
or domestic partner, either under a will or by
intestate succession?
Transfer trust property to trust beneficiaries
(Chapter 12).
Transfer assets using summary probate
procedures (Chapter 11).
Commence probate court procedures to transfer
assets to beneficiaries (Chapters 13 and 14).
No formal
probate

required.
File a federal estate tax return (Form 706)
within nine months of date of death (Chapter 7).
Yes
No
Yes
No
Yes
No
Yes
No
Yes
No
Yes
No
Yes
No
Preliminary Steps: Examine decedent’s files, records, and safe-deposit box for will and
burial instructions; collect asset information; determine estate representative; obtain
certified copies of death certificate; notify government agencies; ascertain heirs and
beneficiaries; and collect insurance proceeds and death benefits payable to named
beneficiaries (Chapters 2, 3, 4).
List assets, determine date-of-death values, and
how title is held (Chapters 5 and 6). Is gross
value of estate over $2 million (for deaths in
2007 and 2008)?
How to Settle an Estate
CHAPTER 1: AN OVERVIEW 9
already has a named beneficiary, or if title is held
in a way that avoids probate, then it isn’t part of the

probate estate. To return to the bridge analogy we
discussed earlier, this means that property which
is held in one of these ways can be transferred to
the proper beneficiary using one of the alternate
(nonprobate) bridges.
As a general rule, the following types of property
need not be probated:
• jointtenancyproperty
• lifeinsurancewithanamedbeneciaryother
than the decedent’s estate
• pensionplandistributions
• propertyinliving(intervivos)trusts
• moneyinabankaccountthathasanamed
beneficiary who is to be paid on death (this is
sometimes called a “Totten trust”)
• individualretirementaccounts(IRAs)orother
retirement plans that have named beneficiaries,
and
• communitypropertyorseparateproperty
that passes outright to a surviving spouse or
domestic partner (this sometimes requires an
abbreviated court procedure).
Put another way, the probate estate (property
that must cross the formal probate bridge) consists
of all property except the property that falls into the
above categories. Where there has been predeath
planning to avoid probate, little or no property will
have to be transferred over the probate court bridge.
To repeat, whether or not probate is needed is not
in your hands. The decedent either planned to avoid

probate, or didn’t—there is nothing you can do once
death has occurred.
You can simplify the settlement of your own
estate, however. The best resources covering
this subject are Plan Your Estate, by Denis Clifford
(Nolo) and 8 Ways to Avoid Probate, by Mary
Randolph (Nolo). You can also find lots of good
information in the Wills & Estate Planning part of
Nolo’s website, www.nolo.com.
The Taxable Estate
Although this book is primarily about settling an
estate, we include some mention of taxes because
estates over a certain value are required to file a
federal estate tax return. Therefore, you should
know how to compute the value of the decedent’s
estate for tax purposes, which—not surprisingly—is
called the “taxable estate.” Keep in mind that the
property that must go through probate (probate
estate) is not necessarily the same as the taxable
estate. Not all assets are subject to probate, but they
are all counted when determining whether estate
taxes must be paid. In other words, the taxable
estate includes all assets subject to formal probate,
plus joint tenancy property, life insurance proceeds
(if the decedent was the owner of the policy), death
benefits, property in a living trust, and property in
any other probate avoidance device. However, if any
of the assets are community property (discussed in
Chapter 4), only the decedent’s one-half interest is
included in his or her taxable estate.

If the estate is large enough to require a federal
estate tax return, any tax is computed on the net
value of the decedent’s property (net estate). That
is, the tax is determined by the value of all property,
less any debts owed by the decedent and certain
other allowable deductions.
Insolvent Estates
An “insolvent estate” is one that does not have
enough assets to pay creditors in full. Insolvent
estates are subject to special rules and we do not
include specific details here. Usually you must
consult an attorney.
In general, however, creditors are divided into
classes according to their respective priorities.
(Probate Code § 11420.) First priority is given to
debts owed to the United States or to the State of
California, such as various taxes. Those debts must
be paid before other debts or claims. (Probate
Code § 11421.) Next in priority are administration
expenses (attorneys’ fees, court costs, etc.) and,
after that, funeral expenses, last illness expenses,